LVIII CHAP. ments of succeeding times, and respectfully consulted as of ten as any doubtful question arose in the tribunals of Palestine. With the kingdom and city, all was lost,133 the fragments of the written law were preserved by jealous tradi tion 134 and variable practice till the middle of the thirteenth century: the code was restored by the pen of John d' Ibelin, count of Jaffa, one of the principal feudatories; 135 and the final revision was accomplished in the year thirteen hundred and sixty-nine, for the use of the Latin kingdom of Cyprus.136 Court of peers. The justice and freedom of the constitution were maintained by two tribunals of unequal dignity, which were instituted by Godfrey of Bouillon after the conquest of Jeru salem. The king, in person, presided in the upper-court, the court of the barons. Of these the four most conspicuous were the prince of Galilee, the lord of Sidon and Cæsarea, and the counts of Jaffa and Tripoli, who, perhaps with the constable and marshal,137 were in a special manner the com peers and judges of each other. But all the nobles, who held their lands immediately of the crown, were entitled and bound to attend the king's court; and each baron exercised a similar jurisdiction in the subordinate assemblies of his own feudatories. The connection of lord and vassal was honourable and voluntary: reverence was due to the benefactor, protection to the dependent; but 133 A la terre perdue, tout fut perdût, is the vigorous expression of the Assise (c. 281). Yet Jerusalem capitulated with Saladin; the queen and the prin cipal Christians departed in peace; and a code so precious and so portable could not provoke the avarice of the conquerors. I have sometimes suspected the existence of this original copy of the Holy Sepulchre, which might be invented to sanctify and auth_nticate the traditionary customs of the French in Palestine. 134 A noble lawyer, Raoul de Tabarie, denied the prayer of king Amauri (A. D. 1195...1205), that he would commit his knowledge to writing, and frankly declared, que de ce qu'il savoit ne feroit-il ja nul borjois son pareill, nę null sage homme let ré (c. 281). 135 The compiler of this work, Jean d' Ibelin, was count of Jaffa and As calon, lord of Baruth (Berytus) and Rames, and died A. D. 1266 (Sanut, I. iii. p. i. c. 5.8). The family of Ibelin, which descended from a younger brother of a count of Chartres in France, long flourished in Palestine and Cyprus (see the Lignages de deca Mer, or d'Outremer, c. 6. at the end of the Assises de Jerusalem, an original book which records the pedigrees of the French adventurers). 136 By sixteen commissioners chosen in the states of the island: the work was finished the third of November 1369, sealed with four seals, and deposited in the cathedral of Nicosia (see the preface to the Assises). 137 The cautious John d'Ibelin argues, rather than affirms, that Tripoly is the fourth barony, and expresses some doubt concerning the right or pretension of the constable and marshal (c. 323). LVIII. they mutually pledged their faith to each other; and the CHAP. obligation on either side might be suspended by neglect or dissolved by injury. The cognizance of marriages and testaments was blended with religion, and usurped by the clergy; but the civil and criminal causes of the nobles, the inheritance and tenure of their fiefs, formed the proper occupation of the supreme court. Each member was the judge and guardian both of public and private rights. It was his duty to assert with his tongue and sword the lawful claims of the lord; but if an unjust superior presumed to violate the freedom or property of a vassal, the confederate peers stood forth to maintain his quarrel by word and deed. They boldly affirmed his innocence and his wrongs; demanded the restitution of his liberty or his lands; suspended, after a fruitless demand, their own service; rescued their brother from prison; and employed every weapon in his defence, without offering direct violence to the person of their lord, which was ever sacred in their eyes.' In their pleadings, replies, and rejoinders, the advocates of the court were subtile and copious; but the use of argument and evidence was often superseded by judicial combat; and the Assise of Jerusalem admits in many cases this barbarous institution which has been slowly abolished by the laws and manners of Europe. 138 The trial of battle was established in all criminal cases, Law of which affected the life, or limb, or honour, of any person; combats. judicial and in all civil transactions, of or above the value of one mark of silver. It appears, that in criminal cases the combat was the privilege of the accuser, who, except in a charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil cases, the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witnesses who had, or assumed to have, know 138 Entre seignor et homme ne n'a que la soi: . . . . mais tant que l'homme doit à son seignor reverence en toutes choses (c. 206). Tous les hommes dudit royaume sont par la dite Assise tenus les uns as autres. . . . et en celle maniere que le seignor mette main ou face metre au cors on au ñé d'aucun d'yaus sansesgard et sans connoissance de court, que tous les autres doivent venir devant le seignor, &c. (212). The form of their remonstrance is conceived with the noble simplicity of freedom. CHAP. ledge of the fact. The combat was then the privilege of the LVIII. defendant; because he charged the witness with an attempt Court of by perjury to take away his right. He came therefore to be in the same situation as the appellant in criminal cases. It was not then as a mode of proof that the combat was receiv ed, nor as making negative evidence (according to the supposition of Montesquieu;139) but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty. The consequence of a defeat was death to the person accused or to the champion or witness, as well as to the accuser himself; but in civil cases, the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered an ignominious death. In many cases it was in the option of the judge to award or to refuse the combat: but two are specified, in which it was the inevitable result of the challenge; if a faithful vassal gave the lie to his compeer, who unjustly claimed any portion of their lord's demesnes; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. He might impeach them, but the terms were severe and perilous: in the same day he successively fought all the members of the tribunal, even those who had been absent: a single defeat was followed by death and infamy; and where none could hope for victory, it is highly probable that none would adventure the trial. In the Assise of Jerusalem, the legal subtlety of the count of Jaffa is more laudably employed to elude, than to facilitate, the judicial combat, which he derives from a principle of honour rather than of superstition.140 Among the causes which enfranchised the plebeians from burgesses. the yoke of feudal tyranny, the institution of cities and corporations is one of the most powerful; and if those of Pales 139 See l'Esprit des Loix, 1. xxviii. In the forty years since its publication, no work has been more read and criticised; and the spirit of enquiry which it has excited, is not the least of our obligations to the author. 140 For the intelligence of this obscure and obsolete jurisprudence (c. 80.... 111.) I am deeply indebted to the friendship of a learned lord, who, with an accurate and discerning eye, has surveyed the philosophic history of law. By his studies, posterity might be enriched: the merit of the orator and the judge can be felt only by his contemporaries. LVIII. tine are coeval with the first crusade, they may be ranked CHAP. with the most ancient of the Latin world. Many of the pilgrims had escaped from their lords under the banner of the cross; and it was the policy of the French princes to tempt their stay by the assurance of the rights and privileges of freemen. It is expressly declared in the Assise of Jerusalem, that after instituting, for his knights and barons, the court of peers, in which he presided himself, Godfrey of Bouillon established a second tribunal, in which his person was represented by his viscount. The jurisdiction of this inferior court extended over the burgesses of the kingdom; and it was composed of a select number of the most discreet and worthy citizens, who were sworn to judge, according to the laws, of the actions and fortunes of their equals.141 In the conquest and settlement of new cities, the example of Jerusalem was imitated by the kings and their great vassals; and above thirty similar corporations were founded before the loss of the Holy Land. Another class of subjects, the Syrians,142 or Oriental Chris- Syrians. tians, were oppressed by the zeal of the clergy, and protected by the toleration of the state. Godfrey listened to their reasonable prayer, that they might be judged by their own national laws. A third court was instituted for their use, of limited and domestic jurisdiction: the sworn members were Syrians in blood, language and religion; but the office of the president (in Arabic of the rais) was sometimes exercised by the viscount of the city. At an immeasurable distance below Villains the nobles, the burgesses, and the strangers, the Assise of and slaves. Jerusalem condescends to mention the villains and slaves, the peasants of the land and the captives of war, who were almost equally considered as the objects of property. The relief or protection of these unhappy men was not esteemed worthy of the care of the legislator; but he diligently provides for the recovery, though not indeed for the punishment, of 141 Louis le Gros, who is considered as the father of this institution in France, did not begin his reign till nine years (A. D. 1108) after Godfrey of Bouillon (Assises, c. 2. 324). For its origin and effects, see the judicious remarks of Dr. Robertson (History of Charles V. vol. i. p. 30...36. 251....265. quarto edition). 142 Every reader conversant with the historians of the crusades, will understand by the peuble des Suriens, the Oriental Christians, Melchites, Jacobites, or Nestorians, who had all adopted the use of the Arabic language (vol. iv. p. 593). LVIII. CHAP. the fugitives. Like hounds, or hawks, who had strayed from the lawful owner, they might be lost and claimed: the slave and falcon were of the same value; but three slaves, or twelve oxen, were accumulated to equal the price of the warhorse; and a sum of three hundred pieces of gold was fixed; in the age of chivalry, as the equivalent of the more noble animal.143 CHAP. CHAP. LIX. Preservation of the Greek Empire....Numbers, Passage, and Event, of the Second and Third Crusades.....St. Bernard.... Reign of Saladin in Egypt and Syria....His Conquest of Jerusalem....Naval Crusades....Richard the First of England.... Pope Innocent the Third; and the Fourth and Fifth Crusades. ...The Emperor Frederic the Second... Louis the Ninth of France; and the two last Crusades....Expulsion of the Latins or Franks by the Mamalukes. pas IN a style less grave than that of history, I should perhaps compare the emperor Alexius to the jackall, who Success of is said to follow the steps, and to devour the leavings, of Alexius, the lion. Whatever had been his fears and toils in the A. D. 1097 ...1118. sage of the first crusade, they were amply recompensed by the subsequent benefits which he derived from the exploits of the Franks. His dexterity and vigilance secured their first conquest of Nice; and from this threatening station. the Turks were compelled to evacuate the neighbourhood of Constantinople. While the crusaders, with blind valour, advanced into the midland countries of Asia, the crafty Greek improved the favourable occasion when the emirs of the sea-coast were recalled to the standard of the sultan. The Turks were driven from the isles of Rhodes and Chios; 143 See the Assises de Jerusalem (310, 311, 312). These laws were enacted as late as the year 1350, in the kingdom of Cyprus. In the same century, in the reign of Edward I. I understand, from a late publication (of his Books of Account) that the price of a war-horse was not less exorbitant in England 1 Anna Comnena relates her father's conquests in Asia Minor, Alexiad, l xi. P. 321...325. 1. xiv. p. 419; his Cilician war against Tancred and Bot mond, p. 328...342; the war of Epirus, with tedious prolixity, 1. xii, xiii. p. 345.. 406; the death of Bohemond, 1. xiv. p. 419. |